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Interview with Advocate M.R. Shamshad

May 10, 2022July 22, 2022 parichayteamLeave a comment

M.R. Shamshad is a New Delhi based Advocate-on-Record at the Supreme Court of India. His practice spans a wide range of constitutional, civil, arbitration, matrimonial, and personal law matters in the Supreme Court and various High Courts in India. He represents one of the petitioners challenging the Citizenship (Amendment) Act, 2019 – Mr. Asaduddin Owaisi, Member of Parliament from Hyderabad (a copy of the Petition can be accessed here). The Citizenship (Amendment) Act, 2019 received presidential assent on 12 December 2019, shortly after which ~200 petitions were filed before the Supreme Court challenging its constitutionality. More than two years after the petitions were filed, the challenges are yet to be substantially heard.

This interview has been edited for length and clarity.

Md. Tasnimul Hassan: You represent one of the petitioners who has challenged the Citizenship (Amendment) Act, 2019 (CAA). What prompted you to challenge it and why do you see it as unconstitutional?

M.R. Shamshad: I am representing the petitioner in my professional capacity, but I feel from my heart that the CAA is arbitrary, unreasonable, discriminatory; a law which will ultimately hit all those who are politically inconvenient to the regime which has brought this law. A reading of it may look very innocent, but it has very serious consequences.

Prior to the CAA, the Citizenship Act, 1955 (‘1955 Act’) had undergone about 9 amendments between 1957 to 2015, but it remained region and religion neutral. In the CAA, for the first time, the government chose religion and region as the basis for granting citizenship to a foreign national. The CAA primarily aims to alter the current 1955 Act to provide for the acquisition of Indian citizenship for a certain category of ‘illegal immigrants’ from only Afghanistan, Pakistan, and Bangladesh. In doing so, it lays down qualifying criteria that fail to pass the tests laid down for such laws in Part III of the Constitution, as interpreted in numerous landmark judgments of the Supreme Court.

MTH: One of the main grounds for alleging the CAA to be unconstitutional is that it welcomes migrants from certain religious communities while rejecting migrants from others. By having such manifestly arbitrary standards, you argue that the CAA in some form is encouraging (and to some extent, necessitating) religious conversion. Could you elaborate on this?

MRS: As I said earlier, CAA brings elements of region and religion. The Amending Act, particularly Section 6, offers an incentive to persons from Afghanistan, Bangladesh, and Pakistan to change their faith so as to avail the relaxed requirement of only five (5) years of residence for obtaining Indian citizenship, down from eleven (11) years prescribed under the Third Schedule to the 1955 Act. The present legal regime is that a Hindu coming into India from a war-torn country (like Afghanistan) will be granted a long-term visa and will be put on the fast track for citizenship to be granted after 5 years of residence in India. Whereas a Muslim from the same country seeking refuge will not be eligible for a long-term visa and will have to reside in India for 11 years before he/she can even apply for citizenship.

On the face of it, this way of creating rights on the basis of specific religions (by excluding one religion) is contrary to the legislative policy in India. We have seen various legislations being passed by States defining ‘forcible conversion’ to include an offer of ‘better lifestyle’ & ‘divine pleasure.’ Here the State is granting ‘citizenship’ based on religion. That is why we say that the present framework under CAA is nothing short of incentivizing conversion by the State, in gross violation of Article 25 of the Constitution. I can also say that this is action by the State to glorify the concerned religion(s).

MTH: India is not a signatory to the UN Convention relating to the Status of Refugees, 1951. The CAA has been justified as a law for protecting refugees from minority communities from Afghanistan, Pakistan and Bangladesh. Why do you think India has simply not adopted the UN Convention, and chosen to go down this path?

MRS: Well, as we know, the original Refugee Convention of 1951 was Eurocentric, emanating from the Second World War and thus explicitly related to a particular geographical area. However, the 1967 Refugee Protocol expanded the scope of the 1951 Convention to all countries.

India is not a party to the 1951 Refugee Convention. However, it is important to remember that India is a signatory to several other human rights conventions like the UDHR, ICCPR, ICESCR, CERD, CTCIDTP. Indian courts can also give directions to implement these international laws as it was done in the famous Vishaka (1992) case. The principle of non-refoulement, which states that no persecuted refugee must be deported to any country where they are liable to face persecution, has been recognised as a part of international law. It has become imperative that India does need a refugee law, however; even in the absence of India not being a party to the Refugee Convention, India must follow the other human rights treaties that it has signed and our country’s actions viz. CAA cannot be justified on the sole ground of it not being a party to the Refugee Convention.

MTH: You assert in your petition that CAA offends the principle of constitutional morality. What in your view should be ‘constitutional morality’ apropos of immigration?

MRS: The concept of ‘constitutional morality’ was conceived by Dr. Ambedkar as the shield of the minority against the tyranny of the majority. Recently, the concept has been defined by the Supreme Court in the Navtej Singh Johar case (2018) where the court has said that “‘constitutional morality’ which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways.” The court also said that it is“the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society would violate the principle of constitutional morality.” Regarding the CAA, this principle read with what Dr Ambedkar said is the answer to the question. In the present case, we witness that the State, instead of curbing the majoritarian sentiment, has very much legalized and institutionalized the ‘tyranny of the majority’ and populist ideas, and in doing so has adopted a standard apropos of immigration through certain notifications and the CAA, which clearly violates the concept of constitutional morality as adopted by the Supreme Court and as conceived by Dr. Ambedkar.

MTH: The CAA presumes religious persecution for persons belonging to certain communities. Some commentators have speculated on a CAA-NRC (National Register of Citizens) nexus, by which the CAA allows a pathway back to citizenship to a section of people left out of the NRC in Assam. When the Supreme Court adjudicates on the constitutional validity of the CAA, do you think it is important for the court to take the NRC exercise into account as well?

MRS: It is true that in the absence of a requirement to prove or even claim persecution to apply for citizenship, the CAA clearly appears to have an ‘unholy nexus’ with the NRC, aimed at identifying ‘illegal migrants’ residing in India. While the NRC exercise would result in identification of persons as ‘illegal migrants,’ the CAA seeks to simultaneously offer citizenship to illegal migrants who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian on the presumed ground of persecution.

The other aspect is that the state has, in a way, placed the onus upon the individuals concerned to prove their citizenship by giving extraordinary power to the person who will scrutinise the documents, although it should be the other way around. Only those persons against whom the State has doubt of not being a citizen of India, should be called upon to produce the documents and not every ordinary Indian. We live in a system where making of documents inter alia ration card, income certificate, death certificate makes you run from one table to another, involving severe administrative hurdles – all that without any accountability of the officers concerned. Do you think the issue of citizenship will be easy for a lay person? Don’t you think religion, money, connections, education, etc. of the individual will play a crucial role in the process, which is undesirable, to say the least?

MTH: The NRC has been seen as one of the most ambitious judiciary-led bureaucratic exercises in the country. How do you see the role played by the Supreme Court in overseeing the preparation of the NRC list? Do you believe that the court acted in consonance with its constitutional mandate?

MRS: Firstly, it was a court-initiated drive. There can be a difference of opinion as to whether the Court should have taken initiative on this or not. Definitely, the Supreme Court has a role to play in this process. The Supreme Court bench presided by Justice Ranjan Gogoi (who himself came from Assam, and after demitting office as Chief Justice of India became a nominated Member of Parliament) passed various directions while undertaking the exercise of NRC in Assam. The Court gave validation to the set of documents which could be the basis for inclusion of names in the NRC. It fixed deadlines for this process. It appointed administrators to carry out this process. It recorded the provisions of funding for this purpose: obviously the government had to bear it. All this happened in the Supreme Court. In my opinion, there were severe complications involved. Many people did not understand the consequences of this process as a substantial number of people in that area are extremely poor and illiterate. Moreover, geographically, it is a flood prone area where houses keep shifting. However, the Supreme Court moved very fast to achieve this complicated exercise. And now, after this exercise was announced to be completed, the Executive appears to be saying that it shall be re-done. Why? Why after spending time—including the Supreme Court’s time and a huge amount of public money, this process needs to be re-done?

MTH: Now that the NRC is in action, what do you think the top court’s role should be in deciding the fate of 1.9 million people whose citizenship is in limbo as they are excluded from the NRC list? Also, there have been reports on how the NRC process disproportionately affects people from marginalized communities. Has the judiciary responded effectively to these structural barriers people face in the process of proving their citizenship?

MRS: Firstly, in view of the fact that this initiative of the Supreme Court has led to a serious political issue, as an institution, the Court must intervene to protect the outcome of the process. Secondly, the persons suffering due to non-inclusion of their names in the NRC must be given a fair chance, on priority basis, to agitate their grievance in front of the appropriate authority manned by people who do not carry prejudice on the basis of religion. Moreover, as the Assam NRC is an outcome of the Supreme Court regulated exercise by a dedicated bench, the best way would be to dedicate a bench of three judges to deal with the issue of those aggrieved persons. The Bench should take up the matter fortnightly and see how the administrative process handles attending to their grievances.

MTH: The Supreme Court in Sarbananda Sonowal (2005), called ‘illegal immigration’ no less than an act of ‘external aggression,’ and held that the Centre had a duty under Article 355 of the Constitution to protect states from illegal migration – how has this reasoning impacted India’s approach to policy and legislation on citizenship and immigration?

MRS: Many times, terminologies used in judgments create lots of concern in the public domain. It is not very unusual in our system. However, I must say that the directions issued from time to time in this regard were used by a set of political groups, in coordination with the media, to exploit them for their vote bank politics.

MTH: What, in your opinion, has been the role of the Supreme Court in the CAA-NRC process? Has the Supreme Court played a broader role in furthering exclusion and statelessness since independence? Has this role changed (or possibly amplified) in the past few years?

MRS: The legality of the 2015 notifications and CAA are sub judice in about 200 writ petitions in the Supreme Court. They did not get substantive hearings, much like challenges to other major legislations like the criminality of triple talaq, amendments to the UAPA, the Kashmir issue etc. On the other hand, it is noticeable that the Supreme Court has taken up other urgent and non-urgent matters of national importance by prioritizing the hearings of matters at the administrative level or by passing judicial orders for their listing on an urgent basis. A few examples are issues relating to the Central Vista, Maratha reservations, the Tata & Mistry dispute, the contempt action against lawyer Prashant Bhushan, the issue of permanent commissioning of women in the army.

The active role of the Supreme Court is very crucial at this juncture. Right now, a citizen expects the most from the Supreme Court over any other institution. Incidentally, many of the pending issues relate to anti-Muslim rhetoric by the Executive. Conversely, at present, hearing of matters of constitutional importance itself has become an issue.

We thank Advocate Nabeela Jamil for her support in conducting this interview.

State v. Bikram Singha, FT Case no. 129/2017

February 6, 2022February 6, 2022 parichayteamLeave a comment

Read the order here.

Date of the decision: 10.09.21

Court: Foreigners’ Tribunal-II, Karimganj, Assam

Presiding Tribunal Member: Mr. Sishir Dey

Summary: In a decision on the determination of the citizenship of a person, the Foreigners’ Tribunal recognised the statutory right of citizenship by birth for persons born in India prior to 1.07.1987 under Section 3(1)(a) of the Citizenship Act, 1955. Further, the Tribunal ruled that it could rely on a common Application Receipt Number (ARN) and joint inclusion in the Final National Register of Citizens (NRC), published on 31.08.2019, for the purpose of establishing linkage between the Opposite Party (OP) and their parents, as the NRC is ‘final’ and thus can be used as evidence to corroborate citizenship claims.

Facts: The Election Officer marked the status of Bikram Singha (“Opposite Party”) as a ‘doubtful’ voter. This was done after the Election Officer suspected the citizenship of the Opposite Party (OP) whose name was in the electoral roll of 1997. Electoral officers are authorized to flag people listed on voter rolls, supposedly without adequate Indian documentation, as “doubtful” voters. This process started on 10^th December 1997, when the Election Commission under the advice of the Asom Gana Parishad (AGP) government marked 3,70,000 voters as “doubtful”. A doubtful voter cannot vote because their Indian citizenship is under suspicion. As a result, D-voters are disenfranchised by the government on account of their alleged lack of proper citizenship credentials.

The Election Officer alleged that the OP had not produced any documents to the Local Verification Officer, and referred the case to the Superintendent of Police. Subsequently, the case was referred to the Foreigners’ Tribunal, which adjudicated upon whether the OP was a foreigner or not. To prove his citizenship, the OP produced as many as twelve documents and two witnesses. It was his case that he was born on 06.01.1978 at Jamirala village. In effect, he argued that he was a citizen by birth under Section 3(1)(a) as he was born in India before 01.07.1987. In addition, he contended that his ancestors and family members had been permanent residents of Jamirala, and his father’s name was enlisted in the Voters List of 1970. His father even served the Indian Air Force for 29 years.

In response, the State contended that Section 3 was not applicable, as only Section 6A applied in Assam. In other words, since the OP had not submitted a document prior to 01.01.1966, his parents may have been ‘foreigners’ who migrated to India between 01.01.1966 and 24.03.1971. Further, the OP had relied on his name being included in the NRC to corroborate his claim of linkage with his parents who were born and ordinarily resident in Assam prior to 25.03.1971. The State expressed doubt about the same, specifically “about the finality of Assam NRC published online on 31 August 2019…Submitted that Exhibit – 6 may not be considered as a legally valid document” (paragraph 10). The OP responded that the finality or the legality of the NRC could not be doubted, as it had been published as per the direction and monitoring of the Supreme Court of India.

Holding: The Foreigners’ Tribunal (FT) (correctly) affirmed the OP’s citizenship under Section 3, noting that Section 6A deals with “persons coming to Assam from ‘Specified Territory’. Their children are not covered by the provisions of section 6A but are covered within the ambit of Section 3 of the Citizenship Act 1955. Thus Section 3 of the Citizenship Act is applicable in Assam as rest of India unless and until it’s repealed, amended or struck down, but nothing of these has happened yet” (paragraph 14). Thus, it may be presumed that the OP was born in India prior to 01-07-1987. Therefore OP is a citizen of India by birth in terms of Section 3(1)(a).

The FT noted that the OP proved his linkage with the persons he claimed to be his parents. To prove his father’s citizenship, the OP submitted his father’s Discharge Certificate Book from the Indian Air Force (Exhibit 3) that showed that the OP’s father had served the Indian Air Force for 29 years. This discharge book also contained the name of the OP, his grandfather, his mother and his siblings along with their relation to the OP’s father. The FT took note of the Discharge Certificate Book and the Pension Payment Order (Exhibit 4) in the name of the OP’s father and held that these two documents prove that the OP’s father served in the IAF. If further held that the Indian Air Force must have verified the citizenship and antecedents of the OP’s father before inducting him (paragraph 12). The OP also submitted digital evidence of proof that he along with his parents jointly applied under the same Application Receipt Number (ARN) for inclusion in the NRC, and after several rounds of scrutiny, they had all been included in the Final NRC published on 31.08.2019. Although the name of the OP was in the final NRC, the FT noted that it could only be taken to be proof of his linkage with his parents, but not his citizenship. This is because the Standard Operating Procedures state that a D-voter is not eligible to be included in the NRC unless the FT rules that the voter is an Indian citizen. But, the name of the OP was included in the final draft of the NRC despite being identified as a ‘D’ voter and without a clearance from an FT. The FT responded to this anomaly by observing that the “NRC authority might not have been able to trace the case filed against the OP and his inclusion may be validated only by an FT order in his favor” (paragraph 12).

Lastly, the FT addressed the legal validity and finality of the Assam NRC. It was observed that the Final NRC published on 31.08.2019 was prepared as per the Citizenship Act, 1955 and the Citizenship Rules, 2003. Further, it was prepared under the order, directions and supervision of the Supreme Court. Hence, the FT ruled that “there is no doubt that this NRC Assam published in 2019 is nothing but Final NRC” (paragraph 13). The FT also affirmed the NRC’s evidentiary value by observing that the names of the parents of the OP, as persons in the list “may be taken as the conclusive proof of their Indian Citizenship” (paragraph 12). In other words, the FT ruled that the NRC is a ‘final’ document that could be taken as conclusive proof of a person’s Indian citizenship unless a reference against them is pending before an FT. In cases where a person’s name appears in the NRC when a reference against them is pending before an FT, the decision of the FT on that person’s nationality will prevail over the NRC.

Significance: This order is significant because it correctly considers the final draft of the NRC as a ‘final’ document that can be relied upon to prove Indian citizenship. Since the publication of the NRC on 31.08.2019, there has been a lack of clarity on the status of the document. The NRC process has been in a logjam since the government has not yet issued the reverification slips to file appeals by those who have been excluded from the NRC. After the publication of the NRC, the BJP harped on the ‘incorrectness’ of the document. Before the 2021 Assembly elections in Assam, the Bharatiya Janata Party in its manifesto promised the ‘correction’ of the NRC. The incumbent Chief Minister of Assam, Himanta Biswa Sarma called the NRC an “incorrect” document. This is because out of the 19 lakh people excluded from this final draft, 12 lakh persons were Hindus. In May 2021, the Coordinator of Assam NRC Hitesh Dev Sarma filed a petition before the Supreme Court for the re-verification of the final draft of the NRC.

This, however, is not the correct legal position. It is clear that the NRC, published on 31.08.2019, is the final document. First, after the publication of the final NRC, the Registrar of Citizenship Registration along with the State Coordinator released an official press statement on 31.08.2019 declaring that the draft of the NRC published on 31.08.2019 was the final NRC. According to Rule 3 of the Citizenship Rules, 2003, the authority to “establish and maintain” the National Register of Citizens, Assam lies exclusively with the Registrar General of India (RGI). Second, the Ministry of External Affairs released a press statement on 31.08.2019, officially declaring the publication of the final draft of the NRC. Following is an extract from the press release:

“1. Yesterday, the office of the State Coordinator, NRC Assam released a press statement on the publication of final NRC as on 31st August 2019.

2. Since then, there have been some commentaries in sections of a foreign media about aspects of the final NRC which are incorrect.

8. Exclusion from the NRC has no implication on the rights of an individual resident in Assam. For those who are not in the final list will not be detained and will continue to enjoy all the rights as before till they have exhausted all the remedies available under the law. It does not make the excluded person “Stateless”. It also does not make him or her “a Foreigner”, within the legal meaning of the term. They will not be deprived of any rights or entitlements which they have enjoyed before.”

Third, a bare reading of the orders of the Supreme Court in Assam Public Works v. Union of India clearly evinces that the NRC is final. This makes it clear that the NRC is the ‘final’ document.

In Sufia Khatun v. Union of India, the Gauhati High Court addressed a contention that may seem to have raised doubts about the finality of the NRC. The Court noted that: “It was urged by the learned counsel for the petitioner that the names of the siblings and children of the petitioner have appeared in the Final NRC. In this regard, we are informed that the Final NRC has not yet been accepted and/or notified by the competent authority i.e. the Registrar General of Citizenship Register” (paragraph 14). In this paragraph, however, the Court merely discussed the contention of the state in response to the reliance of the petitioner on the NRC. It did not render its own judgment on the finality of the NRC. Thus, this decision cannot be relied upon to substantiate the argument that the NRC is not final.

Although the FT order is well-reasoned, it is arguable whether the FT has the power to rule on those questions of law that are not sought to be answered before it. Order 2 read with Order 3(15) of the Foreigners’ Tribunal Order, 1946 states that the final order of the FT must be a concise statement of its opinion on the citizenship of the party before it. Further, in several judgments such as Golapi Begum v. UOI , the Gauhati High Court held that in their final orders, the FTs are supposed to answer only those questions that have been referred to it and not assume jurisdiction to answer other questions. A reading of the order in Bikram Singha suggests that the Karimganj FT was indeed supposed to answer the question of the finality of the NRC in order to fully appreciate the documentary evidence produced by the OP. One of the documents that the OP used to substantiate his claims was the NRC list and this was opposed by the state advocate. The state advocate argued that the NRC could not be considered as evidence as it was neither a final nor a legally valid document. Hence, the FT commented upon the finality of the NRC while considering the NRC as a piece of evidence that proved the relation between the OP and his parents.

In Bikram Singha’s case the Karimganj FT was also faced with the question of the legal admissibility of the NRC. The state advocate argued that the NRC list could not be considered a legally valid document (paragraph 10). This contention is not valid. It does not have a legal basis. In Sanowara Khatun v. UOI, the Gauhati High Court held that because the NRC was not a result of a quasi-judicial process, the OP could not contend that the names of her close family members in the NRC constitute material evidence in deciding her review application (paragraph 9). Thus, the High Court did not consider the final draft of the NRC as material evidence while deciding Sanowara’s review application. At the same time, the Court did not hold that the FTs could not take into account the NRC as material evidence when adjudicating upon citizenship. Hence, this decision cannot be relied upon to conclude that the FTs cannot consider the final NRC as material evidence. Another contention against the reliance on the NRC as evidence was raised by the state advocate in the cases of Sufia Khatun v. UOI and Golokjan Bibi v. UOI. It was contended that the NRC cannot be used as evidence as it has not been notified yet in the official gazette. This is incorrect. In accordance with Section 74 of the Indian Evidence Act, the NRC is a public document and thus the lack of notification in the official gazette does not affect its evidentiary value.

Apart from the discussion on the finality and the legal admissibility of the NRC, the FT determined another legal issue. It correctly held that Section 3(1)(a) of the Citizenship Act, 1955 applies with equal force to determine the citizenship of the residents of Assam. This has been expressly stated in Section 6A(7), which clarifies that Section 6A does not apply to a person who acquired their citizenship before the commencement of the Citizenship (Amendment) Act, 1985. This means that if a person were born in India or in the state of Assam before 1.07.1987, then such a person would be a citizen by birth. Thus, such a person need not prove their linkage to their parents or grandparents. That the government is not acquainted with this legal position is alarming.

Table of Authorities:

Sona Khan v. Union Of India, WP(C)/1293/2021.
Golapi Begum vs The Union Of India, WP(C)/2434/2020.
Sanowara Khatun v. The Union Of India, Review. Pet. 16/2020.
Sufia Khatun v. Union of India, Review.Pet. 22/2020.
Orders of the Supreme Court in Assam Public Works v. Union of India, WP(C)/274/2009.

Resources:

Nazimuddin Siddique, ‘Discourse of Doubt’ , Vol. 54, Issue No. 10, Economic and Political Weekly (09 March 2019 ) https://www.epw.in/journal/2019/10/perspectives/discourse-doubt.html?0=ip_login_no_cache%3Da85d78f59750a17dd6c889f84f820582 accessed on 28 September 2021.
M. Mohsin Alam Bhat, ‘Twilight citizenship’, https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm accessed on 28 September 2021.
Ipsita Chakravarty, ‘Doubtful or dubious: Who will count the D voters of Assam?’, Scroll (21 February 2016) https://scroll.in/article/803173/foreigners-vs-citizens-who-will-count-the-d-voters-of-assam accessed on 28 September 2021.
Shuchi Purohit, ‘Foreigners Tribunals,’ Parichay- The Blog (10 July 2021) https://parichayblog.org/2021/07/10/foreigners-tribunal/ accessed on 28 September 2021.
Office of the State Coordinator of National Registration (NRC), Assam, Government of Assam http://nrcassam.nic.in/index-M.html.
Sangeeta Barooah Pisharoty, ‘Citizenship and Assam: An Explainer on the Legal Questions That Still Loom Large’, The Wire (25 November 2019) https://thewire.in/rights/citizenship-and-assam-the-legal-questions-that-still-loom-large accessed on 28 September 2021.
Farah Naqvi, ‘The Citizenship Amendment Bill and NRC Will Together Destroy Our Country’, The Wire (12 December 2019) https://thewire.in/communalism/nrc-citizenship-amendment-bill-hindu-muslim accessed on 28 September 2021.
‘Assam excludes over 19 lakh names from NRC list, BJP unhappy over ‘erroneous’ count,’ The Indian Express (31 August 2019) https://indianexpress.com/article/india/assam-nrc-final-list-bjp-congress-bangladesh-illegal-migration-5954490/ accessed on 28 September 2021.
Lok Sabha Unstarred Question No.1264, Lok Sabha https://www.mha.gov.in/MHA1/Par2017/pdfs/par2021-pdfs/LS-09022021/1264.pdf
Tora Agarwala, ‘BJP promises ‘corrected NRC’ in Assam manifesto, silent on CAA’, The Indian Express (24 March 2021) https://indianexpress.com/elections/assam-assembly-elections-bjp-manifesto-7240987/ accessed on 28 September 2021.
‘Assam NRC authority seeks re-verification of citizens’ list, The Hindu (13 May 2021) https://www.thehindu.com/news/national/other-states/assam-nrc-authority-seeks-re-verification-of-citizens-list/article34548812.ece accessed on 28 September 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Jagriti Pandey.

The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court

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Leah Verghese and Shruthi Naik are executive team members at DAKSH India.

The Gauhati High Court recently set aside an order by a Foreigners’ Tribunal in Assam that declared Haidar Ali a foreigner for failing to establish linkage with seven people whose names appear along with his grandparents’ names in the 1970 voter list. This order has once again brought to the spotlight the flawed citizenship adjudicatory process in Assam. To understand these processes better, the authors have analysed 818 orders passed by Foreigners Tribunal No. 4 in Hajo between 16 June 2017 and 30 December 2019 (obtained through RTI) and 787 orders and judgments of the Gauhati High Court delivered between 2010 and 2019, resulting from writ petitions filed against orders of the Foreigners Tribunals. In this article, the authors explore the process of adjudication of citizenship in Assam, in terms of fairness, procedural aspects, and time taken through an analysis of these orders.

Analysis of Foreigners Tribunal orders

98 per cent of the suspected foreigners brought before Hajo Foreigners Tribunal No. 4 during this period were Muslim. This is not reflective of the population of Hajo, which has a 44 per cent Muslim population, and neither are these numbers explained by the demographic composition of Bangladesh. The 1951 census showed that in East Pakistan (today’s Bangladesh), non-Muslims comprised 23.20 per cent of the population. This proportion became 19.57 per cent in 1961, 14.60 per cent in 1974, 13.40 per cent in 1981, 11.70 per cent in 1991 and 10.40 per cent in 2001. The abnormally high proportion of Muslims (as compared to their population in Hajo or even Bangladesh) brought before the tribunal during this period indicates that they are being targeted.

The orders also reflect a serious non-application of the judicial mind. A majority of orders followed a set of templates with only the names of persons, the police station involved, and the dates relating to the case being changed. The descriptions of investigations by the police are like movie scripts riddled with obvious plot holes. In 733 cases, the police claim to have met the suspected foreigners. During these alleged visits, the police asked these suspected foreigners to produce documentary proof of their citizenship, and 570 of them allegedly told the police that they had no documents to prove that they are Indian citizens. The orders do not mention what kind of documentary proof the police asked for. It is a little difficult to believe that when it comes to a matter as serious as citizenship, 570 people could not produce even a scrap of paper furthering their claim. This leads us to wonder whether the police’s accounts of these visits is credible. In 218 of these cases, the police also concluded which district in Bangladesh (mostly from Maimansingh) the suspected foreigners were from, despite the complete absence of any documentary proof of citizenship. Apart from these alleged meetings with the suspected foreigners, the orders do not describe any police investigation.

Although the police claimed they were able to meet suspected foreigners before submitting their enquiry report, in at least 98 per cent of such cases, they were unable to locate them subsequently to serve a notice to appear before the Foreigners Tribunal. The reason often cited in the orders is that the police could not find the person at their place of residence and local residents and the gaon burahs did not know of their whereabouts when the police enquired with them. We spoke to an advocate practicing at the Gauhati High Court (who has also appeared before the Foreigner Tribunals) who revealed that in some cases, the gaon burahs have also appeared as witnesses for the suspected foreigners and confirmed that the police did not question them and that the person does live in their village. The process adopted by Foreigners Tribunals does not allow the police to be cross-examined by suspected foreigners’ advocates. The lack of a procedure to cross-examine the police leaves no scope to challenge the police’s submissions regarding their alleged meetings with the suspected foreigners and their subsequent inability to find the same people.

The inability to find these suspected foreigners to serve the Foreigners Tribunal’s notice on them works out conveniently for the police and the tribunal. Unlike regular criminal trials where an accused is presumed not guilty and the state has to prove that they committed a crime, the burden of proof as per Section 9 of the Foreigners Act, 1946 is on the person accused of being a foreigner. This reversed burden means that if a person fails to appear before the Foreigners Tribunal, the Tribunal can pass an order declaring them foreigners without hearing the suspected foreigner. We found that 96 per cent of the orders we analysed were given ex-parte. In all these orders, the police produced no evidence to indicate that the suspected foreigners were not Indian. Yet, they were declared Bangladeshi because of the reversal of the burden of proof.

Only in 31 cases were the suspected foreigners allowed to refute the allegations made against them. All these 31 orders were passed by the tribunal member Giti Kakati Das. The progression of her career as a member of the Foreigners Tribunal gives an idea of the effect of declaring a low number of individuals to be foreigners. She was appointed as a member of this Foreigners Tribunal by an order of the Commissioner and Secretary, Home and Political Department dated 29 July 2015 on a contractual basis for one year. After one year, her services were extended for another year, till July 2017. Through a notification dated 20 June 2017, she was denied an extension along with several other members because she had not declared enough people as foreigners. She was reinstated only after she and the others challenged the termination of their services before the Gauhati High Court.

In addition to concerns of fairness, the suspected foreigners also had to go through long drawn proceedings. Given that most of the cases we analysed were decided ex-parte, we expected that these proceedings would have at least progressed swiftly. With a lack of information on the exact filing date of cases before the Foreigners Tribunals, we attempted to understand how long cases took to be disposed of by approximating the filing date as the median date of the year in which the police were asked to investigate the suspected foreigner. This Foreigners Tribunal took on average an astounding 3,637 days, i.e., nearly ten years, to dispose of a case. Of course, with the focus on Foreigners Tribunals in recent years, it is interesting to note that 92 per cent of the cases analysed were disposed of in the years 2018 and 2019 alone. It is also interesting to note that in 82 per cent of the cases, the report of service of notice being forwarded or notice being served in a substituted manner was done in the years 2018 and 2019, although the cases dated as far back as 1999. The cases seem to have been kept in cold storage for several years, then taken out, dusted, and disposed of with undue haste in 2018 and 2019. Further, even though cases were pending for such a long time, the Foreigners Tribunals decided these cases post-haste once the police reported that they could not find the suspected foreigner to serve the tribunal’s notice. In such circumstances (where the individual could not be found) the matter could be decided ex-parte. On average, the tribunal took 39 days from the date of receipt of this report to give ex-parte orders.

97% of these orders direct that the proceedees be deported. Very few of these, if any, will be actually deported since deportation requires Bangladesh’s consent. According to data placed before the Lok Sabha as of 10 December 2019, only four Bangladeshis have been deported pursuant to their declaration as ‘foreigner’ by Foreigners Tribunals in Assam. If deportation is not possible, persons declared to be foreigners are supposed to be sent to detention centers within prisons in Assam, pending deportation.

Analysis of High Court judgments

41% of cases in the High Court judgments and orders pertained to orders passed by Foreigners Tribunals in the districts of Morigaon, Barpeta, and Goalpara. Although none of these districts share a border with Bangladesh, Barpeta has the largest number of Foreigners Tribunals. 35% of the High Court decisions we analysed involved ex-parte orders passed by Foreigners Tribunals.

All the persons whose cases reached the High Court in the set we analysed, had some form of documentation, ranging from electoral rolls, land records, and panchayat certificates. 61% of them had electoral rolls and 39% had permanent residential certificates/ certificates from the panchayat. In 66% of these cases, the Foreigners Tribunals found the documentation unsatisfactory, and in 38% of them, documentation was rejected because spellings did not match. In 71% of the cases, the secondary evidence was deemed not to be admissible. Secondary evidence is usually a copy of the document and not the original. Such evidence gets rejected because either these were not certified copies or the person who created the document (e.g., panchayat member, school principal, etc.) could not certify its contents. One in two people were declared foreigners because the authorities that issued the documents produced before the tribunals failed to appear before the Foreigners Tribunals to testify that the documents produced are genuine and authentic to their knowledge.

Along with issues of procedural fairness, the issue of judicial delay was apparent in this round of analysis as well. The High Court took 477 days (1.3 years) on average to decide these cases and the average number of days between hearings was 116 days.. For these numbers to be put in context, they were compared with similar figures for other cases before the Gauhati High Court. As per data available in the DAKSH database for other cases, the average number of days between hearings was 31 days, and the overall time taken to dispose cases was 277 days (0.7 years). The cases filed against the orders of Foreigners Tribunals seem to be taking considerably longer than other cases before the Gauhati High Court, even though these did not involve complex questions of law.

We found an increase in the number of writ petitions filed before the Gauhati High Court in 2016, with the number of cases being close to double that of the previous year. The Government of Assam set up 64 Foreigners Tribunals in 2014, in addition to the then existing 36 Foreigners Tribunals. The spike in High Court cases may be because of the increase in the number of cases before the newly established Foreigners Tribunals.

The question of citizenship in Assam is nestled in a confusing tangle of documents, bureaucracy, and legal procedures which Foreigners Tribunals and the Gauhati High Court are tasked with resolving. Haidar Ali’s case aptly illustrates this. Ali was declared a foreigner on specious grounds even though he produced eleven documents supporting his claim of being an Indian citizen. This citizenship question is not merely a legal issue. It is also deeply embedded in the political history of Assam. Despite the end of the anti-foreigner agitation in 1985, the anxieties around the issue of migration from Bangladesh remain and have been exacerbated by the National Register of Citizens (NRC) process. Thus, given the political and popular pressure to find and deport foreigners, it is not surprising that the process followed by the Foreigners Tribunals so far has been arbitrary, biased, and unfair. These tribunals High Court needs to be mindful of the lived experiences of identity documentation to avoid an overly legalistic approach in the interests of justice. This issue acquires additional significance in the current context with 19 lakh people excluded from NRC whose cases will get referred to Foreigners Tribunals. Business as usual cannot go on. The process of adjudication of the claims of the persons excluded from the NRC needs to be shorn of the politics that has characterized the process so far and be molded into a fairer and less arbitrary process.

Deprivation of Citizenship

May 6, 2021May 18, 2021 parichayteamLeave a comment

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Khush Aalam Singh, is part of the clinic’s outcomes.

Deprivation of citizenship can be defined as an involuntary loss of citizenship status that was previously held by a person. It is a predominantly legal concept which carries serious consequences. This is because citizenship of a state gives a person access to several rights and protections guaranteed by the state. Acquiring citizenship carries a sense of recognition in social, political, and legal terms. Citizenship also provides access to the conditions and services which are vital for a person’s dignified existence. If a person is deprived of their citizenship, they no longer have a claim to its benefits. This can also get carried forward to the person’s descendants, impacting their access to rights. Additionally, citizenship deprivation may result in the removal of the person from the territory of the state, thereby violating their right to reside in their country.

The idea of deprivation of citizenship has been echoed in various similar expressions. These include terms such as: revocation of citizenship, involuntary loss of citizenship, denationalisation, citizenship erasure etc. While revocation, denationalisation, and involuntary loss do not carry substantial difference from deprivation, citizenship erasure is a concept that requires further classification. Citizenship erasure is described as the “arbitrary retroactive non-recognition” of citizenship of a person. This has been considered distinct from deprivation as it denies the very existence of citizenship status claimed by a person outright, whereas deprivation is carried out in accordance with law. In other words, deprivation takes place in accordance with deprivation provisions contained in a state’s citizenship law, whereas erasure does not involve the formal procedure. Nonetheless, for the purposes of this note, citizenship erasure falls within the ambit of deprivation, as the consequence is the loss of nationality which was not voluntary in nature. In many situations, deprivation of nationality can result in a person becoming stateless. This may leave them vulnerable to human rights violations without any effective recourse.

Deprivation of Citizenship in Domestic and International Law

Under Indian law, the principal framework for deprivation of nationality is the Citizenship Act, 1955 as well as the rules made thereunder. Section 10(2) of the Act empowers the Central Government to deprive a person of their citizenship. This power to deprive citizenship, however, applies only in the case of persons who have acquired citizenship by naturalisation, registration or by ordinary residence in Indian territory five years prior to the commencement of the Constitution. This means that persons who are born in Indian territory or to parents who are Indian citizens cannot be deprived of their citizenship under this provision (jus soli and jus sanguinis citizenship).

Deprivation of citizenship under Section 10 of the Act can only be ordered on specific grounds. The implication of these grounds is that the state cannot arbitrarily deprive persons of their citizenship. The grounds set out in Section 10 must be adhered to. These include (among others) – obtaining citizenship by fraud, disloyalty or disaffection by act or speech to the Indian Constitution, unlawful trade or communication with an enemy, etc. Section 10(3) provides that the Central Government shall not deprive a person of their citizenship unless it is satisfied that the continuation of citizenship is not conducive to the public good. The Telangana High Court in Dr. Ramesh Chenammameni v. Union of India has held that the requirement under Section 10(3) is mandatory, and that a person cannot be deprived solely on the ground of satisfying the conditions under Section 10(3). The Central Government has to satisfy both counts – that the person in question has violated the provisions of Section 10(2) and that the continuation of citizenship is not conducive to the public good.

The principal framework under international law dealing with deprivation of citizenship is the 1961 Convention on the Reduction of Statelessness. Article 8 of the Convention prohibits depriving a person of their nationality where the result of such action would be the person becoming stateless. Clauses 2 and 3 of the Article contain exceptions to this prohibition, which include obtaining nationality of the Contracting State by fraud or misrepresentation, conduct that is seriously prejudicial to the vital interests of the state etc. Article 9 of the Convention prohibits deprivation of nationality of a person or a group of persons on racial, ethnic, religious or political grounds. While India is not a signatory to this Convention, its courts have been mindful of statelessness as a consequence of deprivation of citizenship.

Additionally, India is obliged under its treaty obligations to prevent statelessness as a consequence of deprivation of nationality. It is also obliged to ensure that no person is arbitrarily deprived of their nationality. Article 15(2) of the Universal Declaration of Human Rights (UDHR) prohibits arbitrary deprivation of nationality. This prohibition has now been recognised as a well-established norm of customary international law. Furthermore, India had a vital role to play in advocating for the insertion of Article 15(2) during the drafting of the UDHR.

The Right against Arbitrary Deprivation of Nationality

The right against arbitrary deprivation of nationality finds mention in the UDHR and several international conventions, such as the International Covenant on Civil and Political Rights (ICCPR) etc. This is supplemented by its inclusion in regional frameworks, such as the American Convention of Human Rights (Article 20). This right is of crucial importance when looking at instances of deprivation of citizenship. This is because this right covers two situations of deprivation. Deprivation can be a result of the procedure established in municipal law or by discriminatory refusal to recognise a person or group of persons as citizens. The understanding of arbitrariness under international law is not limited to something being ‘against the law’. It has been understood in a broader sense, encompassing elements of unfairness, inappropriateness and injustice. Arbitrariness also seeks to ensure that ‘lawful’ interference with rights of a person is reasonable. This requires robust substantive and procedural safeguards, as well as conformity to both domestic and international law.

There are several aspects of citizenship deprivation in India that remain unaddressed, raising strong concerns about arbitrariness. Several bonafide Indian citizens face the threat of arbitrary deprivation of their nationality as a result of the process of expelling ‘foreigners’. In particular, over 1.9 million persons in Assam excluded from the National Register of Citizens (NRC) are at the brink of statelessness. Their fate will be decided by the Foreigners Tribunals which raise many significant due process concerns. The current policy on deprivation does not account for deprivation of citizenship through parallel procedures sanctioned by law. Furthermore, there are several inadequacies in terms of substantive and procedural rights for persons being deprived of their citizenship. As a result of wrongful deprivation, a person will languish in detention for the purpose of deportation. These consequences are particularly grave and debilitating, therefore requiring extreme caution and respect for human dignity. Thus, citizenship deprivation calls for greater attention as an urgent issue that needs to be addressed.

Suggested Readings:

Stateless Persons

May 6, 2021May 18, 2021 parichayteamLeave a comment

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Niharika Jain, is part of the clinic’s outcomes.

A person is considered to be stateless if they are not recognised as nationals or citizens of any country. As per the UNHCR, at present there exist over 10 million stateless persons in the world, however only 3.9 million of them are accounted for. Civil society organisations have pointed out that this number can be as high as 15 million. In India, over 1.9 million people are facing the risk of statelessness after being excluded from the National Register of Citizens (NRC) implemented in Assam in 2019.

Statelessness is often a result of conflicting nationality laws, where one allows for nationality to be acquired at birth and the other through descent if one’s parent is also a national. It can also be a result of discrimination in nationality laws based on factors such as religion, ethnicity, gender, along with instances where the State arbitrarily deprives persons of their nationality, as in the case of Assam. Earlier the mandate of UNHCR on statelessness extended only to stateless persons who were refugees. However, it is now known that even though some stateless persons are refugees, many stateless persons never cross an international border. Statelessness affects the basic rights, including the right to nationality, that every citizen enjoys, which includes fundamental rights, civil and political rights, and economic rights.

The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness address various issues related to statelessness in the world. Article 1 of the 1954 Convention defines a ‘stateless person’ as one who is not considered a national by any State under the operation of its law. The 1961 Convention provides that a person may acquire nationality of a contracting state or not be deprived of it if they would otherwise be stateless. Part II of the Indian Constitution stipulates who is a citizen of India, but is silent on stateless persons. It is pertinent to note that India has not ratified either of the two conventions. However as per Article 51 (c) of the Constitution, the Government needs to foster respect for international law which includes treaty obligations that India is party to and customary international law. This includes the Universal Declaration of Human Rights, 1948 (UDHR), as well as the International Covenant on Civil and Political Rights (ICCPR), Convention on the Rights of the Child (CRC) and other treaty provisions that safeguard the right against arbitrary deprivation of nationality.

The Citizenship Act of India, 1955 was initially envisaged based on jus soli practice, wherein citizenship was granted by virtue of the person’s birth on state territory. This was followed by the Citizenship (Amendment) Act, 1986 that introduced restrictions based on jus sanguinis, wherein a person’s citizenship became dependent on citizenship of their parents. Section 3(1)(b) of the Act states that a person born on or after 1 July, 1987 but before the 2003 amendment shall be a citizen if either of their parents were citizens at the time of birth. However, this has the potential of creating a situation of statelessness where both parents are non-citizens or possess no nationality but the child is born in India.

The Citizenship (Amendment) Act, 2003 has the serious potential of aggravating the problem of statelessness in India as it excludes ‘illegal migrants’ and their descendents from citizenship. An ‘illegal migrant’ is defined as “a foreigner entering India without valid documents”. Section 3(1)(c) confers citizenship by birth only when at least one parent is an Indian citizen and the other is not an illegal migrant. Further, section 5 and section 6 of the Act explicitly disqualifies illegal migrants and their children from registration and naturalization respectively, and in any case as the registration of minors requires a valid foreign passport, which they do not possess due to statelessness. This poses a threat of statelessness as they are unable to acquire citizenship from any of the provisions of the Citizenship Act, despite residing in India for a long time, having family ties and attachment to India.

The identification of stateless persons within a jurisdiction is an important step in ensuring they are accounted for in legal documents and can benefit from various human rights commitments. In India, the Foreigners Act, 1946, which has been put in place to regulate the entry, presence and departure of foreigners in India, fails to distinguish between the different categories of non-citizens. The Act defines a foreigner as “a person who is not a citizen of India” and bundles both stateless persons and persons with another nationality together without differentiation. Section 8 of the Act on the determination of nationality does not account for the risk of statelessness where, after the completion of the determination procedure, a foreigner appears to have no nationality. There is no mention of ways in which the issue of statelessness can be resolved, or of the fate of such persons on identification.

The Passports Act, 1967 is the only Indian legislation that mentions the category of stateless persons and caters to their need to have a record of their identity. Section 4 of the Act provides for issuance of passport, travel document and certificate of identity. Schedule II part II of the Passport Rules, 1980 states that a Certificate of Identity can be issued for stateless persons residing in India, for foreigners whose country is either not represented in India or whose nationality is in doubt. However, the form for the certificate makes it mandatory to submit a ‘residential permit’ along with information regarding the ‘last permanent address abroad’. This is based on the assumption that the applicant is a migrant from abroad and fails to account for a person who may not have left the country. This was addressed in the case of Sheikh Abdul Aziz v. State NCT of Delhi, where the HC recognised the urgency of determining the legal status of the petitioner as he had been detained for seven years in addition to his sentence under Section 14 of the Foreigners Act. The Court directed the Government and the Passport authorities to issue a stateless certificate under Rule 4 and grant him a Long-Term Visa (LTV) after the failure of nationality determination. This enabled his right to a dignified existence upon Indian soil.

More recently, the National Register of Citizens implemented in India has left many on the verge of statelessness. The final NRC list, published on August 31^st 2019, excluded about 1.9 million people, leaving them at the risk of statelessness. As per scholars, this coupled with the Citizenship (Amendment) Act, 2019 is discriminatory in nature as it only allows non-Muslims, who are religiously persecuted minorities in Pakistan, Bangladesh and Afghanistan, to be granted citizenship. Section 14A added by the 2003 Amendment to the Citizenship Act, 1955 authorized the Government to compulsorily register every Indian citizen in a National Register of Indian Citizens and issue National Identity Cards. The purpose of this is to identify and deport illegal immigrants. The first National Register of Citizen was prepared for Assam, after the 1951 census of India, to identify illegal immigrants, but it was not maintained. This was again taken up following the SC order in 2013 whereby the Government was directed to update the NRC for Assam. As per several high-ranking government ministers, NRC is proposed to be implemented across India. There are concerns that it may result in putting more people across India at the risk of statelessness if they are unable to show documents that prove their ancestors were citizens of India.

Suggested Readings:

“Securing Citizenship India’s legal obligation towards precarious citizens and stateless persons”, Centre for Public Interest Law, Jindal Global Law School, September 2020.
Bikash Singh, ‘Citizenship Amendment Bill: Why Assam is protesting?’ Economic Times (17 December, 2017)
India and the Challenge of statelessness: A review of the legal framework relating to nationality, National Law University, Delhi, 2012.
The Institute on Statelessness and Inclusion, The Worlds Stateless: Deprivation of Nationality, March 2020, Microsoft Word – FINAL PART I.docx (institutesi.org).
United Nations Human Rights Office of the High Commissioner, Institutional Discrimination and Statelessness in India, Special Rapporteur on Freedom of Religion or Belief, Mr. Ahmed Shaheed, June 1^st 2020, Microsoft Word – Statelessness in India.docx (ohchr.org).

Announcing the Release of Securing Citizenship

December 1, 2020January 11, 2021 parichayteamLeave a comment

Following the excerpts of the reports published on the blog over the course of November, the Centre for Public Interest Law, JGLS, has published Securing Citizenship, which can be found here. The report identifies the critical legal issues surrounding precarious citizens and stateless persons in India. It recommends strengthening the existing legal framework in three interrelated chapters: Status, Detention, and Socio-Economic Rights. The report’s recommendations draw on international law, Indian law, and best practices across jurisdictions, situating their implementation in India’s complex and unique landscape.

This report is the outcome of a research partnership between the Centre for Public Interest Law (CPIL) at Jindal Global Law School, Sonipat (JGLS) and the Faculty of Law, Université Catholique de Lille. The authors convey their gratitude to the advisors – Amal de Chickera, Ioannis Panoussis, Niraja Gopal Jayal and Ravi Hemadri – for their important insights on the initial drafts of the report and guidance in navigating the law concerning statelessness. The authors are equally thankful to the commentators – Andrea Marilyn Pragashini Immanuel, Angshuman Choudhury, Ashna Ashesh, Carly A. Krakow, Darshana Mitra, Jessica Field, Sagnik Das, Suraj Girijashanker and Thibault Weigelt – for reviewing the report and sharing their detailed analyses.

The authors owe their thanks to Mohsin Alam Bhat, as Research Director, for lending his support and legal expertise to conduct this study. As research supervisor, Aashish Yadav coordinated and supervised the drafting of the report, guided the team at every stage, and structured their findings. The authors are very grateful for his passionate engagement and contribution to this report.

The team is grateful to Prof. E. Tendayi Achiume, Dr. Bronwen Manby, Prof. Michelle Foster, Amal de Chickera and Prof. Joshua Castellino for their respective endorsements of this report. The report carries a generous foreword by Prof. B.S. Chimni.

The team holds enormous appreciation for AbhilashRadhaKrishnan for designing the report and making it an enjoyable read. They are extremely grateful to Raki Nikahetiya for graciously allowing the use of his photograph as the cover image of this report.

The student authors of this report are:

Anushri Uttarwar, Arunima Nair, Khush Aalam Singh, Veda Singh, Vrinda Aggarwal, and Yamini Mookherjee from Jindal Global Law School.

Amandine Desmont, Claire Jacquot, Flora Turrado, Hélène Jolly, and Theo Antunes from Université Catholique de Lille.

We welcome responses to the report from our readers as submissions to the blog. The report authors encourage readers to write to them with thoughts and comments.

To foster engagement with the report, we invite you to attend the Securing Citizenship Webinar, organised in collaboration with Centre for Public Interest Law, JGLS. Our panelists include Amal de Chickera (Co-Founder & Co-Director, Institute on Statelessness & Inclusion), Sujata Ramachandran (Research Associate, Balsille School of International Affairs, Waterloo) and Oliullah Laskar (Advocate, Gauhati HC). Our moderator will be Mohsin Alam Bhat (Executive Director, CPIL). Please register at https://bit.ly/3lPXPOl to receive the link and password for the webinar.

Excerpt: Rights of Child Detainees

November 20, 2020November 20, 2020 parichayteamLeave a comment

The following post is an excerpt from the upcoming report ‘Securing Citizenship’ on India’s legal obligations towards precarious citizens and stateless persons authored by the Centre for Public Interest Law, JGLS and Faculty of Law, Université Catholique de Lille. The Report reviews and comments on the key contemporary legal issues pertaining to citizenship and statelessness in India. Divided into three chapters – Citizenship Status, Detention and Socio-Economic Rights – the Report presents recommendations to strengthen the existing legal framework. This excerpt is the last in a three-part series of excerpts from the report. The previous excerpts on legal recognition of the status of statelessness and the framework of socio-economic rights of non-nationals can be found here and here. The entire Report will be published in the final week of November, and the schedule of events can be found here.

IV. RIGHTS OF CHILD DETAINEES

All the rights and prohibitions against detention established and elaborated above apply in the case of children. However, given their special and vulnerable condition, children enjoy additional standards of protection. This section begins with an argument against detaining children on the premise that such detention violates international law pertaining to child rights. Moreover, the state can deploy less intrusive measures in dealing with children. However, given that children may be under detention at present, this section details the rights of such child detainees to be ensured by the state.

The situation of children detained in Assam is worrisome. There is a lack of clarity about the number of children that are currently in detention; however, their presence in detention centres is a confirmed fact. A recent affirmation is found in the application filed before the Supreme Court seeking the release of declared foreigners in the detention centres in light of the COVID-19 outbreak. The application mentions the increased vulnerability of the detainees, which includes elderly people and children living in crowded conditions. There were 31 children in detention centres as per available information. The conditions of these detention centres pose debilitating effects on mental health, without adequate treatment and opportunities for education and recreation. The impact of this situation on children is exponentially greater and liable to pose severe harm to their health.

Detention of children should not take place in principle

As per international law and Indian statutes, detention of children should not take place. The Central Government’s submission before the Supreme Court in the ongoing case of Assam Public Works is a welcome development, stating that children of parents declared as citizens in the NRC shall not be sent to detention centres and shall not be separated from their parents. The absolute prohibition of detention also applies to ‘foundlings’ as a particularly vulnerable category of children. It is argued that children should qualify for protection under the Juvenile Justice Act, 2015 (‘JJ Act’) as ‘Children in Need of Care and Protection’ (‘CNCP’). This section addresses the categories of children who are vulnerable and need protection. This section also seeks to establish safeguards that necessitate compliance when dealing with children in detention.

A.1 Principle of ‘Best Interests of the Child’

Detention of children for the purpose of deportation is a flagrant and unjustified breach of the fundamental principle of best interests of the child protected by Article 3 of the CRC. India is a party to the convention and has incorporated the principle in Chapter II of the JJ Act. As stated by the CRC Committee, the best interests principle is satisfied by the strong prohibition of detention of children since such deprivations of liberty have an extraordinarily adverse impact on the child’s well-being and development. This prohibition particularly must be enforced if the child is detained on the sole basis of their or her parent’s migration status.

While the lack of data is deplorable with regard to the age of the children currently detained in Assam, it is extremely likely that all categories of children and more specifically the most vulnerable ones, such as unaccompanied and young children, are in detention. In light of these elements, India is obligated to cease its current practice of detaining children in detention centres. All the children currently in detention must be immediately released as per international law and Indian law on the issue.

A.2 Detained children as ‘Children in Need of Care and Protection’ under the JJ Act

The Juvenile Justice (Care And Protection Of Children) Act, 2015 1 (4) Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law, including — (i) apprehension, detention, prosecution, penalty or imprisonment, rehabilitation and social re-integration of children in conflict with law; (ii) procedures and decisions or orders relating to rehabilitation, adoption, re-integration, and restoration of children in need of care and protection. 2 (14) “child in need of care and protection” means a child — (i) who is found without any home or settled place of abode and without any ostensible means of subsistence; or (vii) who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed;

The Object of the Act includes the making of comprehensive provisions for all children in consonance with the standards prescribed in the CRC. Therefore, the JJ Act can be used to operationalise India’s international obligations to address the vulnerabilities of both stateless children and children at risk of statelessness.

The scope of the term CNCP encompasses the broad categories of children who are at the risk of detention and its consequent negative impact. Section 2(14)(i) of the JJ Act refers to a child who is found without any home or settled place of abode and without any ostensible means of subsistence. This can cover children whose parents are in detention, who are stateless or are suspected of being foreign nationals. Such children would qualify for protection under the JJ Act. Further, Section 2(14)(vii) extends the scope of CNCP to foundlings i.e. children ‘whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed’. [A foundling is a child of unknown parentage found abandoned within the territory of a state.] This argument is further corroborated by the view taken by Justice Lokur on the scope of the definition of CNCP, stating that the term must be given a broad interpretation. This means stateless children as well as children at the risk of statelessness qualify for protection under the JJ Act.

A.3 Conclusion and recommendations

The CRC and the JJ Act extend a large set of protections to these vulnerable children. The state must conform with best interests of children as mentioned in the JJ Act, keeping in line with international law. Detention of children for removal shall never take place, irrespective of the citizenship status of their parents.

Release all children in detention in Assam as well as stateless children in detention in India as per international law and Indian law. NGOs shall be allowed unimpeded access to detention centres in Assam to ensure that no children remain in detention.
Children at the risk of statelessness and currently in detention should be presented before the district Child Welfare Committee for drawing up protection plans on a case-by-case basis, bearing in mind the best interests of the child.
Develop alternatives to detention for stateless children and their families. Non-custodial, community-based alternatives shall be prioritised.

Rights of children in detention

As argued above, despite the prohibition of arbitrary detention of children, there is evidence indicating that children remain in detention in Assam due to their precarious citizenship. This section responds to rights of children in detention until they are released as per international law and Indian law on the issue.

Right	Indian context	European context	Recommendations
Right to family unity (if parents are also being detained)	Children below 6 years of age are kept alongside their mothers in the detention centre. There is no clarity on circumstances of children over 6 years of age.	Families in detention must be provided with separate accommodation to ensure their privacy. Best practice: In Belgium, children accompanied by their parents are, in principle, not detained but transferred to return houses or to an open reception centre which are adequate, child-friendly alternatives to detention.	Conduct an assessment on the compliance of the detention measure with the best interest of the child as per the family unity principle. Develop more alternatives to detention for stateless children to avoid the disruption of family unity, such as reception centres.
Right to education at an off-site facility	The Supreme Court hasheld that India is obligated to provide free and compulsory education to all children between 6 and 14 years. The court has clarified the vast scope of Article 21A of the Constitution, referring to India’s participation in the drafting of the UDHR as well as the ratification of the CRC. Issue: lack of data regarding any educational opportunity for children in detention in Assam.	EU member states must provide minors, whose removal has been postponed, with access to a basic education system, depending on the length of their stay. Best practice: Czech Republic allows migrant children to attend schools at the local elementary school outside the detention facilities. The ECtHR also requires the classes to be free as a bar against discrimination on the immigration and nationality status.	Children must have access to an education system where they are taught by qualified teachers through programmes integrated in India’s education system, regardless of the length of their stay in detention facilities.They must benefit from free classes to avoid any discrimination.Education should be provided outside of detention facilities in line with the best interests of the child.
Right to recreation and play	Article 31, CRC + Best Interests of the Child. Issue: lack of data concerning children’s access to leisure activities in detention in Assam.	This right is protected in Europe but suffers from poor and uneven implementation in the region. Best practice: In Lithuania, children may participate in recreational activities in one of the country’s detention centres.	Ensure recreational activities in which children facing statelessness can meet local children and young people through NGOs or social workers.Sensitise the public with information on the significance of this right for children.Guarantee access without discrimination on the child’s legal status.
Right to medical treatment	There is an obligation to provide access to health care services to all children. The state must ensure satisfactory health conditions and health-related education. Issue: lack of information on the health conditions of children.	Necessary healthcare must be provided, at least with regards to emergency care and to essential treatment of illness and serious mental disorders. First challenge: the consent of unaccompanied children to medical treatment (rigorous assessment of the age and maturity of the child by Finland, the Netherlands, Slovenia and Spain). Second challenge: lack of paediatricians and mental health specialists Best practice: In Poland, children benefit from regular visits from paediatricians in the centre. In Portugal, children may benefit from psychological services to help them deal with anxiety, stress, depression, etc. and can also be referred to the hospital or psychiatric services if necessary.	Ensure that the consultations are conducted in a child-friendly manner and are respectful of the child’s right to confidentiality.Organise regular visits by medical professionals from outside the facilities.Provide children information about available mental health services. Conduct medical screenings of newly arrived stateless children identifying potential issues, both physical and mental, that need care.Ensure a rigorous assessment of the child’s free and deliberate consent to medical treatment.

“I’m too hungry to think of the Pandemic”: An Interview with Iftikar Hussain Siddique from Assam

October 5, 2020October 13, 2020 parichayteamLeave a comment

Iftikar Hussain Siddique is a paralegal in Assam doing his part in ameliorating the conditions of those whose names are excluded from the NRC. This interview seeks to unearth the on-ground realities of Assam as it withstands floods, a pandemic and an identity crisis begotten by the NRC process. Mr. Siddique recounts his encounters and stories highlighting the condition of Assam at the juncture of this confluence of issues.

This interview has been edited for clarity and length.

Aarushi Mittal: Thank you for agreeing to speak to us. Can you tell us a little bit about your work, and how you came to be working as a paralegal?

Iftikar Hussain Siddique: My work includes helping those who are excluded from the NRC List. My aim is to help those from our community who fall within the weaker section of the society. In my initial years, I tried to ensure a healthy and hygienic environment for children. It was around this time that I started helping D-voters in getting their case through along with advocates. Essentially, I assist people in filling up the forms that need to be submitted. Since a sizable proportion of the population is uneducated, they need some sort of help in filling these forms and understanding what they entail.

Since these are uneducated people, they don’t know where their thumb impression needs to be put or if one needs to be put at all. They tend to ask around for help from shop owners. They don’t know anything which is written in the form. This is where my role begins. Further, I also help them in checking if their name is on the list. My friends and I assist them in formulating their claims to citizenship. We were guided by lawyer Aman Wadud in this regard. This is how we tried to help people on the grassroot level. We prepare them for hearings by explaining what all needed to be said and what documents had to be submitted.

Sometimes the biometric machines do not function, so we collected data on which places need a functioning biometric machine to ensure that procedure was not stopped. It is important to submit certain documents, while others are often ruled to be redundant. For instance, many people had submitted their Panchayat documents which were not accepted by the courts as valid proof of citizenship. So, we tried to help them collate a different set of documents which could be submitted.

AM: It has been one year since the final list of the NRC was released. Rejection slips stating the reasons for exclusion were supposed to have been issued to excluded persons, allowing them to file appeals. However, no rejection slip has been issued so far. What has been the impact of this delay on people?

IHS: A very funny yet very astounding impact of this has been with respect to marriages. People now ask whether the name of the prospective bride or groom is on the NRC and whether there has been any adjudication to that effect. There is no other standard. People who have returned from detention camps, their children are in most detriment. This is a major trouble. Halima Khatoon’s daughter is being rejected simply because her mother was declared a foreigner. This is reasoned by claiming there are chances of a legal appeal, and that they would have to pay for these cases by selling lands.

On our part, we tried to help 2000+ families by providing them ration. It is absolutely imperative at this point in time when floods have wiped out fields and the pandemic has taken away work that such provisions be undertaken. People don’t have ration cards or any other means to procure a day’s meal. Many people in the detention camps do not have ration cards. While the government provided Rs.1000 to families, that is barely adequate. Jabeda Khatoon, who had submitted almost 15 documents and was still declared foreigner, had her entire house destroyed as a result of a cyclone. Aman sir tried to help out by contributing some money to fix her house. She was extremely sick and yet she couldn’t go to a hospital because of her status as a foreigner. We tried to get in touch with a few organizations to help her. With a family with no source of income, the cyclone, pandemic, and NRC impacted her greatly.

In this one river island, there was almost 5 feet of water. The people would survive on barely any meals. There had been waterlogging for almost 2 months. We were able to help on the first day of Eid. This was a situation which existed across the spectrum. There was once a huge population among 52 households built of concrete, the floods barely spared a few. These people definitely get impacted. The delay creates trouble in that sense.

AM: Assam has faced the twin blows of COVID-19 and floods.You personally have been involved in a lot of relief work in lower Assam. In your observations, how has this situation impacted persons left out of the NRC? Has there been any government aid?

IHS: The first lockdown was of 21 days. Those who left their houses were beaten up. Further, there was no sale of food grains. Social distancing is a luxury, one which no one can afford. People can’t leave homes, and even if they do, they don’t have a market for their grains since people aren’t leaving homes. Before COVID, hunger was enough of a concern. The pandemic was not a concern for poor people, hunger was. People would say that they were too hungry to think of COVID.

Another issue is the weakened health conditions of those in the detention camps. This is exacerbated with the onset of the pandemic. One by the name of Rajkumar was a daily wager and was travelling to work, he was not aware of the imposition of the lockdown. The police ended up beating him up badly for flouting the lockdown rules. Daily wagers are severely impacted.

The government is only concerned with testing for people who are COVID-19 positive. The political parties come door to door to spread their agenda. They advertise schemes. The Health Minister himself does not wear a mask. The BJP representatives are flouting the norms of social distancing left and right. In furtherance of the elections which were slated to happen, too many meetings are held and there is no social distancing or use of masks.

Guwahati has some restrictions, but these are being flouted by political parties. People don’t trust the hospitals. They just buy medicines and stay home. I believe that Modi and Trump both would simply use the pandemic as an excuse for inefficient functioning. So, they are causing COVID to worsen to bolster their excuses. People have tried to reduce their expenditure on subsidiary items like clothing or going out. The poor Muslim people have been targeted specifically and deemed to be the cause of the spread. They are making a disease communal. While the doctors are cooperative, the media has portrayed a communal image.

The masks are not provided, the government should be distributing masks. The hospitals are not good, doctors are not treating patients properly. Those who are positive are caught and after two days they are released. No containment zone is being made. The people who are positive are not being treated adequately. Hygiene again is a luxury – when a person cannot afford food, how are they to buy sanitizers. The government spends so much money on ancillary things like prizes to state toppers – this is not the time to make such promises. You need these funds to fight COVID. The NGOs must be employed in this regard too. People don’t have soaps to take a bath, hand washing is not possible. The pandemic is for the rich to worry about.

AM: We know that persons declared foreigners by the Foreigners Tribunals are being detained in detention camps. What are the conditions within these camps? There is a stand-alone detention camp coming up in Goalpara–what is the status of that camp? How have local communities near the construction site reacted to the presence of the detention centre?

IHS: Jails had quite a few cases since they have people coming from outside. If one person is positive then all would be positive: jails were sealed and people testing positive were removed. The Supreme Court ordered that those who had been in the camps for over 2 years be released. As a result of the same, less than 50% people were released.

However, now those who leave the camps, they will have to go to the police stations. This has caused a spike in the number of COVID-19 cases in Police stations. Those with COVID-19 still have to travel once a week. One person, who had to walk to a police station for almost 2 hours, had COVID. I asked him to inform the officers as him going to the station would not be safe for the police station in any way. The police asked him to come next week. There is no proper system in place. These people should not be asked to traverse to these stations at a time like this for a few months. Public transport is not functioning, police stations are far off and women cannot cycle to these stations. People need to walk for hours on end and be exposed to the risk of contracting a deadly disease. There is a need for intervention to that effect.

As for Foreigners Tribunals, they are not currently functioning. The Buksa District Tribunal, however, has sent multiple notices. People do not have money, and these notices are released. Now they need to pay lawyers for this. People cannot fight these cases. They say that they’d rather have poison than exist like this. I cannot sleep listening to these stories. I do not know how I would tackle these situations. One person goes through multiple trials and tribulations with reference to their identity as an Indian. I’ve stopped asking people because it disheartens me so much.

The detention camp in Goalpara had stopped construction initially and now it has begun again recently. Those who are excluded are really suffering. People keep asking me questions on how to ensure citizenship. They wake me up at 5 AM asking me how to go about this. I tell them that once the process begins again, I will help. The process of scanning documents has recently begun, they have started curating speaking orders. However, official documents still remain inaccessible.

It’s great for government teachers, the lockdown, they can work at home. The poor people however are in too much pain. This one person had no money whatsoever and we gave him some money. We tried to give some food to people — however so many people came that we had to call the police to calm the crowd. People require food. If you give food to one person, multiple people come for it. Parents ask for food for their children. This one time, I gave one packet of biscuit to this one child and he ran off. It made me cry. His mother kept weeping outside my house. She was a widow. She couldn’t reconcile with the reality that had befallen her.

AM: Have the FTs been functioning during the pandemic? If yes, do you think adequate measures are being taken to make sure that people are able to receive a fair trial?. Are cases dismissed hurriedly given that there was a pandemic or is the pandemic being used as an excuse to deny due process?

IHS: The advocates have lost a lot of money as a result of this lockdown. They used to earn a lot of money in these proceedings. What will happen is that they will now increase their charges for the case. This would further deprive people of the justice that they deserve. People will receive lesser money for their assets due to the lockdown. There might be people who are witness to some cases. If they are casualties to the pandemic, someone loses their chance at citizenship. People might not be able to come. People are not able to procure documents. It takes about 15 days to get documents, this is effectively delayed. People need to apply for certified copies. If these offices do not have officers however, they cannot procure such certified documents. The District Collector’s offices cannot be approached by outside people. How are they to fight cases?

The 6^th citizen concept has become the talk of the town recently as a result of Clause 6 of the Assam Accord. People will be deprived of political rights, rights to buy land, or get jobs. In 1950, many places were really backward, they were not consulted in the first consensus. They remain unnamed. This would be highly unfair. It is a really bad situation. The 200 members appointed for the FT aren’t doing anything, they are just being paid taxpayers’ money. The staff that has been appointed to operate computers and all are not being paid salaries since March. They need to cover costs on their own. The system is not at all effective or people friendly. The reverification is also being discussed. People are being harassed. It’s a politically motivated system of harassment. Nobody knows how the government plans to tackle this. It eludes everyone, it’s only politics.

Aarushi Mittal is a 3^rd year law student at West Bengal National University of Juridical Sciences. She is a research volunteer with Parichay.

Interview with Swati Bidhan Baruah

October 5, 2020October 13, 2020 parichayteam1 Comment

Swati Bidhan Baruah is a vocal advocate for the plight of the transgender community in Assam. Not only was Ms. Baruah Gauhati University’s first transgender law student, but she also went on to become Assam’s first transgender judge. Ms. Baruah has fought and won several cases for the recognition of trans rights. Her organization, the All Assam Transgender Association, has been consistently working towards the realisation of the rights of the transgender community.

This interview has been edited for length and clarity.

Natasha Maheshwari: Ms. Baruah, you filed a plea before the Supreme Court against the exclusion of 2000 persons belonging to the transgender community from the National Register of Citizens (‘NRC’). What motivated you to file the case? What was the Supreme Court’s response? Were they sympathetic to the problems of the community?

Swati Bidhan Baruah: Many transgender persons are abandoned or disowned by their families. When they leave their homes in search of a community, they stay with us. Neither do they have any connection with their parental homes nor any documentation that can help them establish linkage with their parents or guardians. In such a situation, will they be termed as foreigners? Are they not citizens of India?

Additionally, the first step of the NRC process i.e. the NRC form, allowed persons to choose from three gender categories — male, female, and other. By including the ‘other’ category, trans persons were given the right to identify themselves. However, when the first draft of the NRC was published, many trans persons found themselves to be excluded from the list. That is when I spoke to Mr Prateek Hajela, the then NRC Coordinator. Mr Hajela assured me that the government will implement the necessary evolving principles required to ensure the inclusion of members of the transgender community. This would be done through a claims and objections procedure.

But the claims and objections procedure forced trans persons to identify as either ‘male’ and ‘female’, i.e. the ‘other’ category was not included. Now, let’s assume that I chose to identify my gender as ‘other’ while filling the NRC form and later, did not find myself included in the first draft of the NRC. While filing a claim or an objection, the ‘other’ category was not mentioned, thereby forcing me to identify as either male or female. So on one hand, the NRC process purports to allow trans persons to participate in it while simultaneously disallowing us from identifying ourselves. This process is violative of the 2014 NALSA judgment which gave trans persons the right to self identify in addition to leading to discrepancies in data thereby leading to problems in proving citizenship.

When I spoke to Prateek Hajela about this he did not provide us with a satisfactory response. This is why we found it imperative to file an intervention application before the Supreme Court.

[The NRC] is also violative of the rights of orphaned children. How are they supposed to identify themselves as citizens? In order to be included in the NRC, you have to show the authorities your family tree and establish linkage parents. That becomes impossible.

In the court, the ex-CJI told us that we have missed the bus, the Court could not restart the procedure [to ensure our inclusion]. My submission is that if we have missed the bus, aren’t trains and flights available? Why do they not want to accommodate us? However, the Supreme Court did not dismiss our petition. They kept it standing and issued notice to the State Government. The matter is still pending.

NM: What is the experience of the transgender community in Assam during the NRC? Were the NRC Seva Kendras (‘NSKs’) receptive to the trans community’s complaints? Did they help members of the community to look for their legacy data? What has been the community’s experience in producing legacy and linkage documents necessary for inclusion in the NRC been?

SBB: The officers at the NRC Seva Kendras were extremely insensitive. Most members of the trans community do not have any documents to prove their citizenship; the government has not taken any initiative to recognise them. As a result they find themselves excluded from the NRC process.

The officers did not allow us to enter the Seva Kendra. Often, quarrels took between trans persons and officials. But this has not been highlighted by the media. I believe that the media plays a very important role in sensitising members of the society and officers of the government. It is very important that the NALSA judgment is implemented so that our rights are realised and recognised.

The NRC process requires you to enclose documents to show your father’s presence in the country before the year 1971. Thereafter, you have to produce your birth or school certificates to establish a relationship with your father. This entire process is violative [of trans rights] and doesn’t have any evolving principles.

Most trans people do not have documentation that will enable them to prove citizenship. Let me give you an example: let us assume, before transitioning, you were a boy, your name was Rahul. Now, you have transitioned to a girl and your name is Reshma. How do you prove that Rahul is Reshma? The state government is responsible for ensuring that trans persons possess documentation to show that Rahul and Reshma are one and the same person. A few trans persons left home at an older age and still recognise their parents or know of their whereabouts. When they visited their parental homes, their parents refused to give them the required documents. So, in such cases, how do you expect them to produce documents that will enable them to prove citizenship and be enlisted in the NRC?

In 2018, the Ministry of Home Affairs published a report publishing its plans for a nationwide NRC. If the Government of India is planning to extend the NRC process to the entire country it will be a gross violation of the rights of the trans community and orphaned children.

NM: What were the efforts made by civil society organisations to ensure the inclusion of transgender persons in the NRC? Was the government receptive to these efforts?

SBB: No efforts were made, they did not do anything to help us. Seeing the discrepancies in the NRC process, my organisation, the All Assam Transgender Association, filed an intervention application before the Supreme Court pleading for a trans friendly NRC.

NM: How can the government make sure that transgender persons are included within the NRC, i.e., what would a trans-inclusive NRC look like?

SBB: I believe that the government should keep the trans community in mind before initiating any process (and I am not referring to the NRC alone). They should recognise us as a part of society, we should not be alienated and marginalised. Keeping in mind the Supreme Court’s judgment in the NALSA case, the government should evolve a process that is trans friendly. Necessary principles need to be framed specifically for the trans community. If a trans person does not have documents then self-identification should suffice and be accepted as a valid document. If NRC Seva Kendras can exist for men and women, why can’t transgender persons have one?

NM: In 2018, the United Nations raised concerns of the purposeful exclusion of minority groups from the NRC by the local authorities. Do you agree with this concern?

SBB: Yes, I do. The NRC should not violate anyone’s interest. And I am not referring to trans persons only. For example, take yourself, you are born and educated in India. You are religious to the motherland. If someone comes and initiates a process that might declare you as a foreigner, how will that make you feel? It is very problematic!

Instead of implementing an NRC, I believe that the government should define the border. This will prevent trespassing. There should also be an Inner Line Permit in the state along with a law to protect the interest of domiciles. So, there are other ways to protect the rights of the indigenous communities. The NRC is an extremely regressive alternative.

NM: Foreigners’ Tribunals (‘FTs’) are vested with extraordinary power due to the highly restricted criterion for judicial review. They are also allowed to evolve their own rules of procedure. As Assam’s first transgender judge, what is your opinion on the competence of the Foreigners’ Tribunals, which are quasi-judicial bodies, and its members to decide a person’s citizenship?

SBB: They may be vested with extraordinary powers but their orders are often challenged before the High Court and Supreme Court. They are also quashed, if need be. So there is nothing to worry about. A discrepancy, if any, seems to have arisen in ensuring the appointment of FT member judges. After the NRC process was completed. the government was supposed to set up more Tribunals to ensure justice to the persons excluded from the NRC. However, despite the selection of 200 member judges, their appointment has not been disbursed. And yes, there is executive interference and bureaucratic resistance in the functioning of the FTs.Of course, it is a matter of concern. But, in respect of matters concerning transgender persons, if we find any discrepancies in the FT orders, we will challenge them in addition to questioning the credibility of the FT member.

NM: What, in your opinion, has been the role of the Gauhati High Court in upholding due process in cases before Foreigners’ Tribunals?

SBB: Several Muslims were excluded from the NRC solely because of their name. Suppose a man’s surname is Ali, but his father’s surname was Hussain and his mother’s surname was Begum. Now this man has given birth to 4 children. So one child uses Ali as his surname, another writes Hussain, and the third writes Begum. Their surnames do not match with each other and as a result they were declared as foreigners. The Gauhati High Court intervened in cases like these and rectified the judgment of the FTs. Of course, the court is the ultimate remedy. We must have some faith in the judiciary. There are good judges with a strong conscience who have expanded the area of jurisprudence and rectified the mistakes of the FTs.

Natasha Maheshwari is a fifth-year law student at Maharashtra National Law University Mumbai.

Interview with Aman Wadud

October 5, 2020October 11, 2020 parichayteamLeave a comment

Aman Wadud is a practicing lawyer in Assam, where he provides ground-level legal services and support to those who are at risk of being stripped of their citizenship status, owing to the National Register of Citizens (‘NRC’) process. He appears before the Guwahati High Court and the Foreigners Tribunals in Assam, and has also argued before the Supreme Court of India. His voice has been crucial in highlighting the ethnic and religious prejudices in the adjudication of citizenship in Assam. Apart from his litigation practice, Aman was heavily involved in the NRC process which involved travelling across Assam to spread awareness about the Court-monitored NRC. He has recently received the Fulbright-Nehru Master’s Fellowship for 2021-22, and hopes to continue to build on his work through this opportunity. In this interview, we discuss his work, citizenship adjudication in Assam, and the recent petition regarding the release of detainees in light of COVID-19.

This interview has been edited for clarity and length.

Devashri Mishra: I hope to discuss themes and questions which derive from your previous interviews, public appearances, talks delivered in colleges, your engagement with Parichay, and your work. But before any of that, congratulations on receiving the Fulbright-Nehru Master’s Fellowship for 2021-22! Can you tell us about what inspired you to apply for the Fellowship and how you believe it aligns with your work?

Aman Wadud: Thank you so much for inviting me to do this.

Earlier this year I was in the United States, where I was invited to speak at the Harvard India Conference at the Harvard Kennedy School. I was also invited to Harvard Law School, Columbia Law School, Yale Law School, Massachusetts Institute of Technology. I met a lot of professors, scholars, lawyers, and I ended my trip with testifying before the United States Commission on International Religious Freedom Hearing on Citizenship Laws and Religious Freedom, where I was a witness. Through this trip, I realized that an advanced degree in the United States will help my cause, widen my perspective and enrich my knowledge on International Human Rights Law, and comparative constitutional law. I want to understand how citizenship is defined in different constitutional settings and the application of citizenship laws. The jus soli concept came into being in the United States through the 14^th Amendment in 1868, almost 150 years ago. The law has not changed till now, and anyone born in the US is a citizen by birth. Although when our republic was founded, citizenship was granted on the basis of the principle of jus soli citizenship, this slowly got diluted into the principle of jus sanguinis. This was still further diluted in the Citizenship (Amendment) Act, 2003 and now, both parents are required to be Indian citizens. Since my work is centred around citizenship law, and I work before the Foreigners Tribunals (FTs), and High Court, I think that an LL.M. with a focus on human rights and comparative constitutional law will benefit my cause. Apart from my litigation, I’m also involved in advocacy work on statelessness. Around 135,000 people have already been declared to be foreigners in Assam and have been rendered stateless, along with their family members. Considering that most of my cases are pro bono, this prestigious Fellowship will allow me to study as it covers all basic expenses and will additionally provide me a small stipend. The network that I will build through this Fellowship will help me with my work as well.

DM: Absolutely, and I think we’re all eager to see how your work carries forward after your stint in the US! We were extremely happy to hear this news here at Parichay, and we’re certain you’ve been getting similarly warm reactions from everywhere. There have been a few articles and social media reactions which indicate that you’re one of the first North-East Indians to receive this Fellowship – is this true?

AW: Actually, I’m only the second North East Indian to receive this Fellowship in international legal studies, the first was Babloo Loitongbam from Manipur who received this Fellowship in 2004, sixteen years ago! In this category of legal studies, I’m the first from Assam. In terms of the response I’ve received, I’m overwhelmed. Look, to apply for this Fellowship, you need 3 years of experience, and I’ve had 10 years of experience and I’m deeply involved with the cause of fighting citizenship cases. I must have the blessings of a lot of people that I get so much love for my work. Over the years, because of the citizenship cause becoming a movement, I have received many calls and emails, inviting me to speak at several events. That’s probably why people relate with me, and maybe even because I use my Twitter handle quite effectively in furthering my cause. We have to keep in mind that no one was speaking for the cause of citizenship, and it only became fancy to do so only when the NRC list was released, and again when the CAA protests broke out on a national level. Before that, no one spoke about it. I have been working on this since 2014, and continuously speaking about it, possibly that is why people are emotionally related to me. In Assam, I think people know me because cases of the disadvantaged are referred to me from almost every sub-division of the state, and I’ve fought all these cases. These cases have taken me to many places in Assam, and I also travel for meetings and legal awareness, and for training lawyers here. That way, I know a lot of people and a lot of people know me! I’ve been working sincerely, and working really hard, and so by the grace of God, that may be why many are able to relate with me. I’m overwhelmed by the love and wishes I’ve received over the last few days!

DM: What you said about the rise in the debate around citizenship post the NRC coming about, and more so when the CAA was passed, is a very visible development, even in academic circles in law schools. The conversation around citizenship caught on significantly at the national level only recently, and it seems to be on an exponential rise. How do you think this development is seen by those living this reality everyday?

AW: In law schools, people have started taking interest in this. I’ve spoken to professors who admit that they used to skip the citizenship provisions while teaching constitutional law, and would skip to other chapters. Most of them did this because it seemed unimportant at the time. But now, it has become a practical, and important aspect of constitutional law, even in teaching, and it is no longer something we can take for granted. Perhaps they thought it could never be questioned but finally, we know that there can be a process where everyone may have to prove their citizenship. And that is probably why the interest has increased. I wish people had taken cognizance of what is happening in Assam, which has been happening for a long time. If you go to Economic and Political Weekly you will find articles on Assam, otherwise hardly there was any writing, however, several scholars such as Anupama Roy, who are authorities in the field, have written a lot on the subject. But it has remained a relatively minor field in academics, and before the NRC or CAA debates, a citizenship issue was not considered fancy enough to discuss.

It is regrettable that people did not give adequate attention to the citizenship crisis in Assam, possibly many lives could have been saved if they had. As you know, detention centers in Assam started in 2009, around 10 years ago, where people were being detained indefinitely. Finally, in 2018, Mr. Harsh Mander filed a petition before the Supreme Court, which reduced the period of detention to three years and it brought an end to indefinite detention. Thirty people have died in the last three years. If enough interest had been given to these issues by professors, academics, and students, possibly it would have made a huge difference to this number. But, I’m happy people are finally paying attention.

DM: To go back a little to your mention of your trip to the US earlier this year – particularly your witness testimony during the Hearings at the US Commission on International Religious Freedom. You spoke about how marginalised groups are adversely affected by the citizenship determination process, especially because many of them do not have documents. Can you tell us a little more about why marginalised groups struggle to provide documentary evidence of their citizenship?

AW: The nature of proving citizenship is such that it is entirely dependent on documentation. Because there is a prolonged problem of citizenship in Assam, the Bengali Muslim community, especially, has always been very careful about documentation.

Firstly, the primary document is the Voter List, but since most people accused of being ‘illegal migrants’ are illiterate, there are often anomalies in the names in the Voter List. There are inconsistencies in titles especially for Muslims, the father could have the title Ali, while the son’s title is Ahmad, but this is not a concern for Muslims. But for Hindus, the title remains constant, except for women whose title changes upon marriage. So the Voter List has anomalies with age and name.

Secondly, there is a huge problem of erosion in Assam. Every year, around 800 hectares of mainland is eroded by the Brahmaputra and Barak rivers. People become homeless and shift from one place to another, and they have to record their name to the village they move to. So, there is a different Voter List for their original home, and a different one in the village they have shifted to. For example, if the person’s name is Amjad Ali, the Tribunal may say that the Amjad Ali names on both Voter Lists are different and some other Amjad Ali has been picked up, especially if there is a difference in name and age which happens often owing to typographical or clerical errors. This causes a lot of problems for people who migrate, as the Tribunal is given more reason to doubt the veracity of the evidence.

It is not only erosion, but because these are poor people, they do migrate for their livelihood, although this group constitutes a lesser number of people and those affected by river erosion are much more.

Thirdly, women are another vulnerable group in this context. Women get married early in Assam since the minimum age is 18 years now (earlier it was 21 years). They vote only after marriage because of being married at around the age of 18 itself, and they do so in their matrimonial home and not in their parental home. This is true for almost every woman who is accused of being an ‘illegal migrant’ in my experience, I have hardly come across any woman whose name is recorded with her parents on the Voter List. Thus, a woman’s name is usually recorded with the husband in the Voter List. This is how women lose the most important document to prove their citizenship, as the voter list is a public document which is not required to be proved by the issuing authority. So, a brother who comes to depose as a defense witness, can prove his citizenship as defense witness because of being able to prove a relationship with their father, but the sister is not able to do so, whose citizenship is being questioned as she does not have documents to prove it. This is the most important problem here in documentation for proving citizenship. Apart from Voter List, a woman can rely on Gaon Panchayat certificates, school certificates, nikah namahs – which are all private documents. There are also jamabandi certificates which can be relied upon but those are rare since these are poor people, who do not generally part with their land, and especially not to give to their daughters or sisters. This is a big problem in every society, that women do not receive land. If they do, land documents are reliable documents , but need to be proved by the issuing authority. The bottom line is that if their names are not on the Voter List with parents, it is difficult to prove citizenship before the Tribunals. If a seasoned lawyer is approached with a woman’s case, they will immediately say it’s a bad case, or refuse to take the case. This is bad, and of course they should not do this, but they also think that this will be a difficult case so they refuse because of the absence of documentary evidence. They could rely on the deposition of relatives, under Section 50 of the Evidence Act, but in practice , this does not happen because oral evidence is hardly relied upon by the Tribunal. Even if the father himself comes to testify, the Tribunal says that oral evidence is not enough to prove citizenship. Now, with NRC, children’s documentation is also weak as a result, and I fear that they may become yet another vulnerable group in citizenship cases.

DM: So when those accused of being ‘illegal migrants’ are ‘declared foreigners’, they are taken to detention centres, which you mentioned earlier. You recently approached the Supreme Court (‘SC’) in a plea to release persons ‘declared foreigners’, under the Foreigners’ Act, 1946, from the detention centres in light of the COVID-19 pandemic. What are your thoughts on the role of the SC in releasing people stuck in detention centres throughout the COVID-19 lockdown? Was the Supreme Court’s decision and the administrative response as you and your team expected when you filed before the Court?

AW: The SC in regard to detention and citizenship matters, is not as sympathetic as it should be. We filed our petition because the Court had already taken up a suo moto case with regard to decongesting the prisons in the wake of the COVID-19 pandemic. We felt that since detention centres are located in prisons, detainees should be released on the same basis as prisoners being released to decongest prisons. So we filed this petition praying that all detainees should be released unconditionally, without the earlier conditions imposed by the Court, i.e, completion of three years in detention, and requirement to submit two sureties of INR 1 Lakh each upon release, and appearance before police station every week. Since these are very harsh conditions, we argued that being a ‘declared foreigner’ should not attract such penal consequences. Persons are purportedly detained for the purpose of deportation only, but since March 13, 2013, which is when the formal deportation procedure began, only four ‘declared foreigners’ have been deported as per the Assamese Government’s affidavit before the Supreme Court. So if they cannot be deported, why detain them? Thus we prayed that these conditions be done away with, and that everyone be released in wake of the Coronavirus Pandemic.

The Hon’ble Supreme Court was pleased to reduce the detention period from three to two years, and reduce the financial bond to be furnished to INR 5000. This is a welcome Order, and 350 people have already been released. People like Minara Begum, who was detained in 2010, could not be released earlier because of the onerous requirements of the financial bond to be furnished by sureties in the 2019 Order which reduced the detention period to three years. When the requirements were reduced this year, a lot of people came forward with INR 5000 and detainees could be released. When Minara Begum was detained in 2010, her daughter was only 15 days old, she grew up in the detention centre with her. Their release and numerous others’ release was secured because of the Hon’ble Supreme Court’s order in our petition. But, I very humbly disagree with the Order in the sense that I think it is unreasonable to even detain people for two years if there is no scope for deportation which is the stated purpose of detention. Persons released after three or two years, with the surety, still have to appear before the police station. Everyone can be asked to meet this condition of appearing before the police station. Surety can be taken to meet this requirement, and instead, the surety requiring these huge financial bonds can be dispensed with, and I am certain many will come forward to give surety as well. As I said, in the last three years, 30 people have died in the detention centres which anyway have pathetic conditions. Detainees are forced to live there without having committed any crime, which takes a huge toll and they are under huge mental trauma. I agree that it is a favourable decision and I bow down to the decision of the Hon’ble Supreme Court, but I had hoped the entire system of detention would be dispensed with. I would have been happy if each and everyone had been released.

DM: In a recent interview, you spoke about the pressure on bureaucratic and judicial officials to manufacture foreigners where none exist. This raises a larger question of how the determination of citizenship should ideally take place. What are some of the best practices/legal principles that we should incorporate into our system, and are there jurisdictions which we can look to for guidance?

AW: Firstly, I wonder if there is even a citizenship determination process in other countries which is comparable to the way it is determined in India. I’ve researched a lot, but there is no process that can match the way it is done here.

Secondly, the basic problem is that while all tribunals in India are set up under a legislation, Foreigners Tribunals are set up under an Executive Order. The foundation itself is wrong. In the 1964 Order too, there is a requirement for members to have judicial experience which has slowly been relaxed, and altogether dispensed with. Initially, lawyers with 10 years of experience were appointed, then in 2019 lawyers with 7 years of experience were appointed. I’ve come across several recent appointees who only enrolled as lawyers 7 year ago and many of them have not even been practicing lawyers. Many appointed to the Tribunal do not have adequate experience to deal with the most important right in the Constitution – citizenship rights.

Citizenship is the most important constitutional right, and as it is often called, and it indeed is, the ‘right to have rights’. If you take away citizenship, you don’t have any rights. Although the Constitution of India states that Article 14 and 21 are applicable to everyone, in practicality this is not true. For eg — ‘declared foreigners’, do not have any rights despite this constitutional guarantee. They are stripped of all possible rights to live a normal life. If you look at the composition of the Tribunals, it is easy to understand the problem, many members do not even know how to write an opinion, they are not familiar with fair trial procedures, principles of natural justice or the basic principles of the Evidence Act. Although the Hon’ble Gauhati High Court selects them, they are the appointees of the Home Department of the Government of Assam. In 2017, there were remarks in the performance appraisal reviews of these members, which said their performance was unsatisfactory only because they could not declare more people as foreigners. If members declare more people as Indian, then their performance is considered unsatisfactory. All Tribunal members are on a contractual basis of two years, and those selected in 2019 are on a contract of 1 year. Thus, maintaining a job through renewal by the Government requires that the rate of declared foreigners be high, because the Government is engaged in vendetta politics and they are hell bent to prove more people as foreigners. The report by Arunabh Saikia on Scroll where Tribunal members refer to citizenship as ‘wickets’ and how many ‘wickets’ each has taken — that’s how casually they look at it, and that’s how many members decide cases as well.

Recently, in the Dhubri district of Assam, they replaced all the Muslim government pleaders with non-Muslim government pleaders. There should at least be some pretense of following due process, or of being fair, but the Government is brazen. There should be some representation, especially in Dhubri district where Muslims are the single-largest majority but they have all been replaced. It is clear that the government wants this process to work in a way that does not meet the standard of a fair trial. I can say this with full responsibility and conviction, that this process does not meet the fair trial standard. The investigative process makes a mockery of the guarantees in the Constitution because a fair investigation is part of the right to a fair trial. When I speak of the investigative process, I become speechless because there is no investigation to speak of, and anyone can be picked up randomly and be accused of being an ‘illegal migrant’. For example, my client Mohammad Sanaullah, who is an ex-army veteran who served the country for 30 years, who was in Manipur in a counter-insurgency operation, Hifazat, when the forged ‘confessional statement’ of him of being an ‘illegal migrant’ was signed. Hifazat means security, and when he was securing his country, he was accused of being an illegal migrant by the Assam Border Police. I shudder at the thought. This is why I really wish that the academics, scholars, and law schools, who have taken so much interest in the citizenship issue now, had done so earlier. Injustice anywhere is a threat to justice everywhere, and because people did not speak up when injustice was happening in Assam, it is haunting us all over the country. Every person who believes in the rule of law, and the theory of justice, must speak out against the gross injustice happening in Assam. This is not what the founders of India envisaged, and our Constitution says that all are equal before the law, and that the rule of law is supreme. These kangaroo courts should not exist because they do not follow due process. As a responsible citizen, I feel very sorry that no one did enough to raise their voices.

DM: It is of note though that while the rest of the country, and the world, did not pay attention to the issue in Assam keenly, you and other lawyers have continued this fight at the FTs there. As a young lawyer, what has been your experience working in the FTs? Within the community of lawyers, how has your experience with the Bar Association, and others litigating before the FTs panned out? Did you have a mentor to guide you in this process?

AW: With regard to upholding the Indian Constitution, and inspiring me to become a human rights lawyer, I had two mentors. Firstly, Mr. Prashant Bhushan with whom I interned in the SC in my fifth year, in January 2010. In 2014, I met Mr. Harsh Mander as well. Both of them mentored me in that sense. But my inspiration to litigate in the field of citizenship specifically is owed to the fact that I’ve been accused of being a Bangladeshi myself, by my batchmate in secondary school. While studying law, I initially wanted to appear for UPSC, but I realized I would lose my voice. I wanted to speak out about what was happening. I realized I needed to tell the stories of how people of Indian soil are accused of being illegal migrants in their own motherland. They are abused and massacred in the name of being illegal migrants. Although we elect MPs and MLAs, they don’t speak about these issues. Our leaders and representatives should speak, because they have social and physical security, unlike me. I’m faced with threats to my life and my career but I continue to speak because I cannot compromise on what I believe. That’s why I gave up my dream of writing the UPSC exam, because I want to speak the truth and tell my stories. The day I stop speaking the truth, I will not be able to live with dignity. And it’s not just about my dignity, but the right of the persecuted and marginalized and voiceless people to live with dignity, that is what keeps me going. It is a right that predates the Constitution. It is an inherent right, the Constitution and the Hon’ble Supreme Court through various judgements only confirmed the right to live with dignity. Any person born in any country, whether Stateless or legal or illegal, possesses rights to live with dignity (The word ‘illegal migrant’ itself is wrong, but it is the language of the Citizenship Act, which is why I’m using this term.)

Several lawyers have fought these cases, but it was just a case for most of them, and not a cause. In 2014, I started fighting these cases and I realized that most of the people who approached me were rickshaw pullers or thela walas who could not pay my fees. I realized that I belong to a privileged background, so I was not after money but the core of it was that I empathize with them. Empathy, not sympathy, because I saw myself in their position, because I know I could be one of them. When I was in secondary school, a friend called me ‘Bangladeshi’ so if instead of him, it had been the Border Police, they would have referred my case to Tribunal and I would be standing in the FT defending my citizenship. I saw myself in their place and I started doing this pro bono. In 2016, someone from my nani’s (maternal grandmother) place who knew that I practiced in the Supreme Court approached me. Moinal Molla had been detained for two and a half years by then, because of an ex parte order declaring him to be a foreigner. Both of his parents were declared Indians by the same FT. His writ petition and review petition were dismissed by the High Court and they had no money to go to the Supreme Court.

We had a small group of friends then, and I told them that this was a good opportunity to help someone and simultaneously get the word out about detention centres in Assam, and the arbitrary process of FTs by which one can be declared foreigner ex parte. In 2014, the issue was an elephant in the room in Assam which no one wanted to talk about, and outside Assam, no one knew. It was, and still is, a taboo to appear for the defense in these cases at the FTs or HC, they think they will get branded in a certain way, sadly. One of my friends told me that she will give her zakat money, and another friend also came forward. Eventually, we landed up in the SC, and we briefed Mr. Raju Ramachandran about the case. The case got remanded to the FT in Barpeta, Assam, where I appeared 11 times and fought his case fully pro bono. He was declared an Indian and released after 2 years, 11 months and 29 days of detention. This story got out when notice was issued for the SLP by the SC, and eventually when he was released, it made big news! There have been subsequent cases of Mihir Biswas, Kismat Ali, Ashraf Ali, Mohd. Azmal Haque, and Sanaullah, which I fought and tried to publicise to bring the focus the issue deserves. At least people are talking about it, even jurists like Faizan Mustafa are writing about the FTs being kangaroo courts, and rightly so. Constitutional experts and jurists are speaking about this now, and I wish it had happened sooner. The blame also does lie on the civil society in Assam, which could not tell the world what is happening, and we had to start it.

DM: There is often this narrative around the NRC, that there is political consensus on the need for this exercise, but its implementation has alienated people. Is it true that this consensus exists and if yes, could it have been done in a way that could have been fair and independent?

AW: There was no such consensus about NRC from all groups of people – why should everyone’s citizenship be scrutinized? But then the SC ordered that the 1951 NRC should be updated in Assam, and since it was the Hon’ble Supreme Court’s order, we took it very positively. We thought that if at all there should be scrutiny, a Court-monitored process would be better than merely an Executive process. We wanted closure – how long will one group of people accuse another group of being illegal migrants? We thought that this issue must end; every election is fought only on this issue. In 2016, BJP fought and won the election only on this migrant issue. Hence, the Bengali Hindus and the Muslims took part in the process very actively. Plenty of lawyers, civil rights activists, and organisations travelled all across Assam to create legal awareness about how to fill up the form. I was also one of the privileged people who got to travel all over Assam, particularly the minority dominated areas, and I told the people I met, in each and every meeting, that this is a Court-monitored process so they should have faith in the Supreme Court of India. I assured them it would be a free and fair NRC, but the process turned out to be very harsh. There were several rounds of scrutiny, but people thought that “This is the last time going through this process, after this, do not accuse and abuse us as foreigners, let there be closure!”

The Supreme Court quoted Shri Prakash Jaiswal’s statement before the Parliament about ‘5 millions illegal migrants’. Although, Shri Prakash Jaiswal himself withdrew that comment, this withdrawal was not recorded and the SC recorded only his first statement. After the process, only 1.9 million people were excluded. We found that many relatives, including my own cousins, were excluded from the NRC, which is how these numbers reached 1.9 million. But, in an Economic Times report, NRC authorities say that apparently names included in the NRC were deleted later on. In June, the NRC authorities issued another order for rectifying the Order which excluded people. What can be more outrageous than this? After excluding people from citizenship in an Order, they turned around to say that there are anomalies in that Order! Citizenship is not a petty thing. After the NRC list was out, when 1.9 million were excluded, the supporters of NRC began speaking against it.

Today, we say – notify the NRC, and confirm it. There were 3.29 million people who applied for it, and 1.9 million have been excluded, so the others should receive the national identity card. That is the requirement under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. More than one year later, nothing has happened. Within a week, excluded people were supposed to receive rejection orders so that they could appear before the FT. The Guwahati HC selected 200 people to be appointed to the FTs in 2019 as I mentioned earlier, who are taking salaries of around INR 85,000 without doing any work, through taxpayers’ money. There is no issuance of notice because the very people who advocated the NRC found that their propaganda did not match the reality because allegedly there is ‘less exclusion’ so they do not accept this NRC. Now, the Home Minister says there will be another NRC in Assam, and the BJP government in Assam also says that they will scrap the NRC to hold another round of NRC, recently they stated they want re-verification. INR 1600 Crores were spent only by the Government in this exercise, which involved 55,000 Government employees, and these costs do not even include the costs incurred by the common people travelling across the State. People went through a lot of harassment during the process, and some even committed suicide for fear of losing their citizenship. How can you ask people again to produce documents in the name of re-verification? This would be a betrayal of the faith which people reposed in the Supreme Court when the Court ordered that the government update the NRC.

Devashri Mishra is a fifth-year B.A. LL.B. (Hons.) student at West Bengal National University of Juridical Sciences, Kolkata. She is a member of the Parichay Blog Team.